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2018 Supreme(Mad) 4546
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VAIDYANATHAN, J.
Garment and Fashion Workers Union (Reg.No.3317/CNI) - Petitioner
Versus
The Assistant Commissioner of Labour (Conciliation)-I and Ors - Respondent
W.P.No.34648 of 2018 & W.M.P. No.40173 of 2018
Decided On : 31-12-2018
Advocate Appeared:
For the Petitioner: Ms.D.Geetha
For the Respondents: Mr.D.Surya Narayanan Additional Government Pleader
Headnote:
Industrial Disputes Act - Section 33 – Employment and service – Jurisdiction - no iota of evidence - proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous – Held, contention of the petitioner-Union is that the employees have not been given an opportunity to defend in the enquiry, and even though the said request of opportunity is raised, the members of the petitioner-Union had not been given a fair chance cannot be gone into in the present Writ Petition - Moreover, in this case, the employees concerned are facing charges and it appears from the records that an industrial dispute had been raised only after issuance of the charge-sheet and in order to defeat that, one can say that industrial dispute had been raised. In any event, even assuming that the industrial dispute is raised earlier or subsequently, it is open for the third respondent-Management to take appropriate action. Nothing prevented the petitioner-Union from raising an industrial dispute at any time and nothing prevented the employer to proceed against the employees at any point of time. Whether the Management has complied with the mandatory provisions of the Act or not, is a matter to be decided only in the said industrial dispute and this aspect of the matter cannot be gone into the Writ Petition under Article 226 of the Constitution of India. As disputed questions of fact are involved in this Writ Petition, and as the employees concerned are already facing charges, apart from the fact that they have been issued with charge-sheet and only subsequently, they have raised the industrial dispute, the Writ Petition is liable to be dismissed - Under the guise of seeking the above relief, the petitioner is trying to stall the entire proceedings. Once the dispute is pending, the employer has to comply with Section 33 of the Industrial Disputes Act, 1947 and it is for the employer to decide as to how the provisions should be followed and he will be taking the risk of not following the provisions - Petition is dismissed
ORDER :
1. The petitioner has come forward with this Writ Petition to forbear the second respondent from taking any disciplinary action against the members of the Petitioner Union included in the Annexure herewith or altering their service conditions in violation of Section 33 of the Industrial Disputes Act, till the disposal of conciliation proceedings in disputes referred to under ID Nos.659 and 23 of 2017, pending before the first respondent.
2. According to the learned counsel for the petitioner, there is a dispute pending and that the Petitioner has to comply with Section 33(1) of the Industrial Disputes Act.
3. For the sake of convenience, Section 33 of the Industrial Disputes Act, 1947, is extracted hereunder:
33. 1 Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.
(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 2 an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall--
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 2 or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],--
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
(b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer."
4. If the relief sought by the petitioner is granted, it is like putting the Cart before the horse. This Court cannot issue a direction as to how the employer has to act. If there is any illegality, remedy is available to the petitioner as per the principles laid down by the Apex Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. V. Ram Gopal Sharma reported in 2002 (2) Supreme Court Cases 244, relevant paragraphs of which, read as under:
"13. The proviso to Section 33(2)(b), as can be seen from its very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further, any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs 1000 or with both. This penal provision is again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in another way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contra
